Teter/Grell Opposition To Defendants' Motion For Summary Judgement (Hawaii Butterfly Knife Case)

Case 1:19-cv-00183-ACK-WRP Document 51-1 Filed 03/30/20 Page 1 of 28 PageID #:
442
Alan Alexander Beck

Law Office of Alan Beck
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
Alan.alexander.beck@gmail.com
Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
MS Bar No. 102784
*Admitted Pro Hac Vice
Attorneys for Plaintiffs

ANDREW TETER & JAMES GRELL
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII
ANDREW TETER and JAMES ) Civil No. 1:19-cv-00183 ACK-WRP

GRELL )
)
Plaintiffs, )
) MEMORANDUM IN OPPOSITION TO
v. ) DEFENDANTS’ MOTION FOR
) SUMMARY JUDGMENT
CLARE E. CONNORS, in her )
Official Capacity as the Attorney )
General of the State of Hawaii and AL)
CUMMINGS in his Official Capacity ) HEARING: April 28, 2020 11AM
as the State Sheriff Division ) TRIAL: June 16, 2020 9AM
Administrator ) JUDGE: Hon. Alan C. Kay
)
Defendants. )
_______________________________)
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PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
I. Introduction………………………………………………………………….1
II. Argument
a. Knives Are the Most Common Arm……………………………………..1
b. Defendants’ Evidence Is Inapplicable…………………………...……….2
c. The Laws of the Kingdom of Hawaii Are Inapplicable………………….4
d. Butterfly Knives Are Not Dangerous and Unusual ………...……………7
e. Butterfly Knives Are Not Like Switchblades ……………………..…….8
f. Lacy is Inapplicable to Plaintiffs’ Challenge ……………….………….12
g. Fyock Allows for the Application of Strict Scrutiny……..…………….14
h. This Court Should Rely on State v. Delgado………………………...…16
i. This Court Should Rely on State v. Herrmann and not State v.

Murillo……………………………………………………….………….18
j. HRS 134-53 Cannot Survive Intermediate Scrutiny……………………19
III. Conclusion……..…………………………………………………...…...….24
ii
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TABLE OF AUTHORITIES
Cases
Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) ......................... 20, 21
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) .....................22
District of Columbia v. Heller, 554 U.S. 570, 598 (2008) .............................. passim
Duncan v. Becerra, 366 F. Supp. 3d 1131, 2019 U.S. Dist. LEXIS 54597 15, 20, 23
English v. State, 35 Tex. 473, 14 Am. Rep. 374 (1872) .............................................3
Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) .................................................21
Fyock v. City of Sunnyvale, 779 F.3d 991, 2015 U.S. App. LEXIS 3471 ... 7, 14, 15,
16
Jackson v. City & County of San Francisco, 746 F.3d 953, 2014 U.S. App. LEXIS
5498.......................................................................................................................23
Lacy v. State, 903 N.E.2d 486, 2009 Ind. App. LEXIS 526 ....................... 12, 13, 14
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) ............................................21
McCullen v. Coakley, 134 S. Ct. 2518 (2014) .........................................................19
Minority Television Project, Inc. v. F.C.C., 736 F.3d 1192 (9th Cir. 2013) ...........20
New York State Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242, 2015 U.S. App.
LEXIS 18121 ................................................................................................. 10, 19
Parents for Privacy v. Barr, 2020 U.S. App. LEXIS 4503 .....................................22
People v. Castillolopez, 63 Cal. 4th 322, 371 P.3d 216, 202 Cal. Rptr. 3d 703, 2016
Cal. LEXIS 3754...................................................................................................13
People v. Walker, 2019 Ill. LEXIS 329, 2019 WL 1307950 .....................................2
Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) .........................................22
Shew v. Malloy, 136 S. Ct. 2486, 195 L. Ed. 2d 822 (2016) ...................................20
State v Murillo, 347 P.3d 284 (2015)............................................................ 1, 18, 19
State v. DeCiccio, 315 Conn. 79, 105 A.3d 165, 2014 Conn. LEXIS 447 ..............16
iii
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State v. Delgado, 692 P.2d 610 (Or. 1984) ...................................................... passim

State v. Herrmann, 2015 WI App 97, 366 Wis. 2d 312, 873 N.W.2d 257, 2015
Wisc. App. LEXIS 832 .................................................................................. 18, 19
State v. Mendoza, 920 P.2d 357 (Ha. 1996) ..............................................................6
State v. Muliufi 643 P.2d 546 (1982) .......................................................................18
United States v. Henry, 688 F.3d 637, 2012 U.S. App. LEXIS 16615, 2012 WL
3217255...................................................................................................................7
Worman v. Healey, 922 F.3d 26, 2019 U.S. App. LEXIS 12588 ............................20
Statutes
HRS § 134-53...........................................................................................................23
Militia Act of 1792 .....................................................................................................2
Other Authorities
David B. Kopel, Clayton E. Cramer & Joseph Edward Olsen, Knives and the
Second Amendment, 47 U. Mich. J.L. Reform 167, 183 (Fall 2013) ......... 2, 8, 13
Fyock et al., v. The City Of Sunnyvale et al. 4:13cv5807, Sunnyvale's Opposition
to Plaintiff's Motion for Preliminary Injunction Docket Number [36] ................16
George C. Wilson, Visible Violence, 12 NAT’L J. 886, 887 (2003) ........................7
Harwell Wilson & Roger Sherman, Civilian Penetrating Wounds to the Abdomen,
153 ANNALS OF SURGERY 639, 640 (1961)...................................................21
HRS Const. Art. I, § 17 ..............................................................................................6
Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37
CALIF ...................................................................................................................21
Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U.
CHI. L. REV. 20 (1975) .......................................................................................22
Kingdom of Hawaii Constitution of 1840, “Governors.” ..........................................5
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I. Introduction
Defendants’ Motion for Summary Judgment should be denied. Based on the
both Plaintiffs’ and Defendants’ evidence, butterfly knives are typically owned for
the lawful purposes of martial arts training and self-defense. While Plaintiffs do not
concede that switchblades have any special propensity for criminality, Defendants’
attempt to analogize to them is inapplicable. As Defendants’ own exhibits
demonstrate, butterfly knives are arms typically used for the lawful purposes of self-
defense and martial arts training. As such they receive Second Amendment
protection. As a preliminary matter, Defendants make no argument that their ban
survives strict scrutiny and thus concede that if this Court applies strict scrutiny the
ban is unconstitutional. And even if this Court uses intermediate scrutiny as shown
below, Hawaii’s complete ban is unconstitutional.
II. Argument
a. Knives Are the Most Common Arm
Relying on State v Murillo, 347 P.3d 284 (2015), Defendants argue that
“butterfly knives are not a ‘quintessential self-defense weapon’ for defense in the
home, like handguns”. Defendants’ MSJ at 12. This is extrapolated from Murillo’s
holding (which Defendants quote) that knives are a “peripheral set of arms”. This is
patently false. “[K]nives have played an important role in American life, both as
tools and as weapons. The folding pocketknife, in particular, since the early 18th
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century has been commonly carried by men in America and used primarily for work,
but also for fighting.” State v. Delgado, 692 P.2d 610 (Or. 1984). The federal Militia
Act of 1792 required all able-bodied free white men between 18 and 45 to possess,
among other items, “a sufficient bayonet….”.1 This establishes that knives were in
common use and arms used for militia purposes during the founding of our nation.
In fact, knives are the “most common ‘arm’ in the United States”. See David B.
Kopel, Clayton E. Cramer & Joseph Edward Olsen, Knives and the Second
Amendment, 47 U. Mich. J.L. Reform 167, 183 (Fall 2013). “Only about half of U.S.
households possess a firearm, and many of those households have only one or two
firearms. In contrast, almost every household possesses at least several knives.” Id.
b. Defendants’ Evidence Is Inapplicable
As a preliminary matter, Plaintiffs disagree with Defendants’ argument that
certain types of knives can be outside of constitutional protection assuming knives
are as a whole are protected.2 Heller found that handguns, as a class, are
constitutionally protected arms. After that, the Supreme Court did not delve into
whether the particular handgun Dick Heller possessed was constitutionally
1
Militia Act, 1 STAT. 271-04 (1792).
2
Plaintiffs did not include a citation to People v. Walker, 2019 Ill. LEXIS 329, 2019
WL 1307950 in their moving papers. The court in Walker struck Illinois’s ban on
taser ownership and carry by applying a categorical approach and supports the use
of a categorical approach it this case.
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protected.3 Similarly, Heller used knives as an example of an arm. See Heller, 554
U.S. at 590 (emphasis added) (“In such circumstances the temptation [facing Quaker
frontiersmen] to seize a hunting rifle or knife in self-defense... must sometimes have
been almost overwhelming.”). Butterfly knives as well as all other types of knives
must receive constitutional protection. This is supported by the fact that Defendants
cannot identity a single case that agrees with their position, and as listed in Plaintiffs
moving papers, a bevy of Courts have found otherwise.4
Defendants claim that the Philippines outlawed the butterfly knife for similar
reasons “it was outlawed in Hawaii in 1999.” Defendants’ MSJ at 4. And then the
Defendants quote a Wikipedia article for the proposition that it is “generally illegal
to carry [a butterfly knife] without identification or a proper permit in the streets of
[Manila]…” Id. Thus, per Defendants’ authority, butterfly knives are legal to
possess in the Philippines and the only restrictions are on carry outside the home.
Even if Filipino law had any relevance to U.S. constitutional law, this is a strange
3
The handgun Dick Heller wished to register was a High Standard 9-shot revolver
in .22 with a 9.5" Buntline-style barrel. See
https://www.hoffmang.com/firearms/dc-roster/msj-2009-04-
13/SJ_SEPERATE_STATEMENT.pdf at *7 (last visited 1/17/2020) and App. to
Pet. for Cert. U.S. Supreme Ct. 07-290 at 119a. This is not a common handgun.
4
Defendants cite to English v. State, 35 Tex. 473, 14 Am. Rep. 374 (1872). However,
this case embraced a militia centric view that was directly rejected in Heller in lieu
of a right to personal self-defense.
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argument because in Hawaii, the butterfly knife is completely banned, and no
identification document or permit would allow carry in the streets or even mere
possession in the home.
Defendants fail to demonstrate with any competent summary judgment evidence
that there are any genuine issues of material fact which would render summary
judgment inappropriate for the Plaintiffs and further, Defendants’ arguments are
unsupported by current caselaw. As such, summary judgment should be granted for
the Plaintiffs and Defendants’ motion denied.
c. The Laws of the Kingdom of Hawaii Are Inapplicable
Defendants’ reliance on laws from the Kingdom of Hawaii completely lack
merit. As a preliminary matter, the cited to law only deals with carrying weapons
outside the home so it has no applicability to Plaintiffs’ challenge to possession in
the home.5 Moreover, these laws are the relic of a monarchical regime that has no
relevance in analyzing our system of constitutional law.
Even after transitioning to a constitutional monarchy, the Kingdom of Hawaii
Constitution of 1842 did not recognize a right of the people to bear arms.6 Quite to
5
The same applies to the cited to laws on carrying butterfly knives from the
Philippines. And the laws of a foreign nation are even less applicable to the
Plaintiffs’ challenge.
6
See http://www.hawaii-nation.org/constitution-1840.html. (last visited 1/16/2020)
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the contrary, it declared unequivocally that the “four Governors over these Hawaiian
Islands ... shall have charge of ... the arms and all the implements of war.” Kingdom
of Hawaii Constitution of 1840, “Governors.” Consistent with an exclusive claim to
arms, the 1840 Constitution declared that the king “is the sovereign of all the people
and all the chiefs.” Id., “Prerogatives of the King.”. Indeed, traders and settlers
selectively doled out firearms in order to “unite[] Hawaii’s eight main islands into a
single kingdom [under] Kamehameha I....”.7 Thereafter, native Hawaiians continued
to be disarmed, as more and more settlers arrived, with generally only the European-
installed government (and select Caucasian inhabitants) being permitted to possess
arms.8 The monopoly on arms was later used to solidify American control over the
Hawaiian Islands through the “Bayonet Constitution” of 1887.9
7
J. Greenspan, “Hawaii’s Monarchy Overthrown with U.S. Support, 120
Years Ago,” https://www.history.com/news/hawaiis-monarchy-overthrown-with-u-
s-support-120-years-ago (Jan. 17, 2013). (last visited (1/16/2020)
8
Odd Fighting Units: The Honolulu Rifles during the
Hawaii Rebellions, 1887-1895,” Warfare History Blog (Aug. 13, 2012)
http://warfarehistorian.blogspot.com/2012/08/odd-fighting-units-of-world-
history.html (last visited 1/16/2020)
9
“1887: Bayonet Constitution,” National Geographic (“The new
constitution was written by a group of white businessmen and lawyers who wanted
the kingdom to be part of the United States. This group, called the Hawaiian
League, was supported by an armed militia called the Honolulu Rifles.”)
https://www.nationalgeographic.org/thisday/jul6/bayonet-constitution/ (last visited
1/16/2020)
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This is hardly a noble pedigree to apply when determining the right of a
sovereign people to keep and bear arms. See District of Columbia v. Heller, 554 U.S.
570, 598 (2008). Rather, Hawaii’s monarchial history undermines its claims, making
it an extreme outlier among the states — embracing a view of its rulers and people
that was utterly rejected by our Declaration of Independence and the Constitution of
1787. It was not until 1898 that the United States annexed Hawaii as a territory. It
was not until 1950 that the current state constitution was adopted (including
language mirroring the Second Amendment).10 And it was not until 1959 that Hawaii
was granted statehood. In short, Hawaii’s history on weapons regulation is utterly
irrelevant here. Rather than being embraced as “longstanding”11 and/or
“presumptively lawful,” Hawaii’s antiquated weapons regulatory scheme should be
rejected out of hand — a relic of history, not unlike the sovereign prerogatives of
King George, against which this country’s Second Amendment was designed to
protect. This Court should decline the government of Hawaii’s invitation to embrace
its history of disarmament.
10
See HRS Const. Art. I, § 17; see also State v. Mendoza, 920 P.2d 357, 362 (Ha.
1996).
11
In a passing reference, Defendants seem to argue that because Hawaii regulated
“bladed weapons” in 1852, a law that was enacted in 1999 is somehow granted
longstanding status. See Defendants’ MSJ at 10-11. This argument is logically
incorrect as a law cannot possibly be considered “longstanding” when the ban struck
in Heller was enacted in the 1970s.
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d. Butterfly Knives Are Not Dangerous and Unusual
Based upon this Circuit’s precedent, this Court should not find that butterfly
knives are dangerous and unusual weapons. In the Ninth Circuit, whether an arm is
dangerous is determined through its capacity to inflict harm on others. See United
States v. Henry, 688 F.3d 637, 640, 2012 U.S. App. LEXIS 16615, *6-7, 2012 WL
3217255 (“a modern machine gun can fire more than 1,000 rounds per minute,
allowing a shooter to kill dozens of people within a matter of seconds. See George
C. Wilson, Visible Violence, 12 NAT’L J. 886, 887 (2003). Short of bombs,
missiles, and biochemical agents, we can conceive of few weapons that are more
dangerous than machine guns”). We know based on Heller that a handgun is not
lethal enough to be dangerous within the context of the Second Amendment. And
Defendants have already admitted that knives are less deadly than handguns. See
Deposition of Robin Nagamine, Docket No. 34-6, Tr. at 27:19-21. Defendants’
witness agreeing that a “knife is less dangerous than a handgun”. Even firearm
magazines that hold over 10 rounds that allow for sustained fire are not too
dangerous as to be outside of constitutional protection. See Fyock v. City of
Sunnyvale, 779 F.3d 991, 2015 U.S. App. LEXIS 3471. And as established below
by Defendants’ own exhibits, butterfly knives are commonly possessed for lawful
purposes and are thus not unusual arms. For these reasons, the State’s dangerous
and unusual argument must be rejected.
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e. Butterfly Knives Are Not Like Switchblades
Assuming without conceding the State’s propositions about switchblades are
correct, these propositions cannot be analogized to butterfly knives.12 First,
Defendants argue that both are “concealable” because their blade can fit into its
handle than and that they can be “deployed quickly”. Defendants’ MSJ at 9. These
arguments are spurious. A butterfly knife is no more concealable than a standard
pocketknife. And any folding knife, such as a Swiss Army Knife’s blade, also fits
into its handle. Perhaps trying to rebut Plaintiffs’ Expert, Defendants state that a
12
In fact, switchblades are arms designed and used for lawful purposes. The belief
that they are used for criminal purposes is a product of Hollywood, much like the
nunchaku bans after Bruce Lee used them in movies. “Automatic knives were first
produced in the 1700s. The earliest automatic knives were custom made for wealthy
customers. By the mid-19th century, factory production of automatic knives made
them affordable to ordinary consumers. During World War II, American
paratroopers were issued switchblade knives, “in case they become injured during a
jump and needed to extricate themselves from their parachutes.” The switchblade
enabled them to cut themselves loose with only one hand. In the 1950s, there was
great public concern about juvenile delinquency. This concern was exacerbated by
popular motion pictures of the day--such as Rebel Without a Cause (1955), Crime
in the Streets (1956), 12 Angry Men (1957), and The Delinquents (1957)--as well as
the very popular Broadway musical West Side Story. These stories included violent
scenes featuring the use of automatic knives by the fictional delinquents. Partly
because of Hollywood’s sensationalism, the switchblade was associated in the public
mind with the juvenile delinquent, who would “flick” the knife open at the
commencement of a rumble with a rival gang, or some other criminal activity. This
is an important part the origin of the many statutes imposing special restrictions on
switchblades.” See David B. Kopel, Clayton E. Cramer & Joseph Edward Olsen,
Knives and the Second Amendment, 47 U. Mich. J.L. Reform 167 (Fall 2013) *16.
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“butterfly knife can be opened and ready for use very quickly” and cite to six
YouTube videos.13 Defendants’ MSJ at 5.
Notwithstanding not being provided this information beforehand, these videos
do nothing to rebut Plaintiffs’ Expert Witness who, from a concealed position with
his hands off the butterfly knife, performed a test to demonstrate the butterfly knife’s
opening speed from concealment. All videos in Defendants’ MSJ appear to have the
user start with the hand already on the butterfly knife and only one video purports to
show the user draw from concealment.14 But even this video does not offer a
persuasive rebuttal to Plaintiffs’ Expert because the user again has his hand on the
butterfly knife in his pocket before he draws and opens the butterfly knife. And in
any event, Plaintiffs’ Expert video demonstrated that a standard folding pocketknife
opens faster than a butterfly knife.
Accepting Defendants’ position would lead to the absurd result of all folding
knives (and most small fixed knives) being constitutionally unprotected. That
cannot be when Heller found handguns to be protected. Handguns are both
concealable in the pocket and are much more dangerous than any type of knife.
Furthermore, even assuming some gang members were found with butterfly knives
13
These videos made their first appearance in Defendants’ Motion for Summary
Judgment and had not been produced in discovery beforehand, nor have Defendants
designated any expert to rebut Plaintiffs’ expert testimony and video.
14
That video is titled “Balisong Fast Opening for Fighting”.
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at the time of their prohibition in 1999, that does not follow that butterfly knives’
typical use is for unlawful purposes. As the Second Circuit has stated, Heller holds
there is a presumption that arms are constitutionally protected, and the burden is on
the government to rebut that presumption. “Heller emphasizes that ‘the Second
Amendment extends, prima facie, to all instruments that constitute bearable arms.’
Heller, 554 U.S. at 582. In other words, it identifies a presumption in favor of Second
Amendment protection, which the State bears the initial burden of rebutting.” See
New York State Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242, 257, 2015 U.S. App.
LEXIS 18121, *29.
Citation to an unsubstantiated legislative comment is insufficient to rebut this
presumption especially in like of the fact Plaintiffs have submitted expert evidence
that butterfly knives are typically used for lawful purposes and open slower than
both a common folding knife and a switchblade. Butterfly knives are legal to own
in forty-seven (47) states and case law supports they are constitutionally protected.
Defendants’ very own submissions rebut their arguments that butterfly knives
are used for unlawful purposes:
The Balisong knife is without a doubt one of the most popular knives
today... The modern balisong knife has plenty of uses unlike the ancient
ones. Today, it is one of the knives with massive fanbase. It has been
transformed into a multipurpose knife. Because its blade can be
concealed inside the two handles, it has become the easiest to carry
knife. So, people prefer carrying it in the pocket as their primary self
defense weapon. It works brilliantly as the defense weapon. Since it is
quick, the blade can be deployed at once. Hence, the user has every
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chance to survive against the attacker. The safety of carrying this knife
is another factor that has made this knife popular. The blade is
concealed and locked inside the two handles. There is no chance that
blade accidentally opens in your pocket. Therefore, you can
comfortably carry the knife. The modern butterfly knife is lightweight
and small, but is sturdy enough.
See Defendants Motion for Summary Judgment Exhibit F. And then from the
legislative history:
However, butterfly knives or "Balisong" are an integral part of the

filipino martial art called Escrima. Like Karate, Aikido, or TKacw on
Do, Escrima is a martial art that developed and arose out of the
country's unique culture. In the case of the Philippines, the blade arts
became an essential part of Escrima specifically because the average
filipino man needed to carry a knife for hunting, harvesting and general
self-defense. Similarly, Indonesia also has a strong tradition of "blade
arts." Escrima and Balisong practice were endemic through-out the
Philippine Islands even before colonization first by the Spanish, and
later by the U.S. Escrima schools here in Hawaii teach Balisong as a
legitimate martial art.
See SOH 00021 Testimony of Ronette M. Kawakami Deputy Public Defender, on
behalf of the Office of the Public Defender, State of Hawai'I to the Senate Committee
on Judiciary. Further legislative history states:
Over the past 30 years our school has trained hundreds of people from
all walks of life in the weapons-based Filipino Martial Arts that include
the Balisong. The Balisong-butterfly knife developed in the Philippines
in the 1940's has earned a reputation as a weapon of mystique, but in
it's simplest form it is nothing more than any other knife in that it has a
point and a cuing edge. I ask that you reconsider, and withdraw the
Balisong-butterfly knife as a prohibited weapon and allow those of us
honest citizens to continue to use this weapon as a cultural tool as it
should be. I have a copy of SB 606 and see that HB1496 is patterned
after SB 606.
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In SB606 the outcome was that the Balisong owner was in violation of
the law by having in his or her possession a butterfly knife. I ask that
you consider not taking the easy way out by merely following HB1496.
Instead I hope that you will take the time to research and find a way for
those of us to use the Butterfly knife as a cultural instrument can
continue to do so. We advocate that stiff penalties should be in effect
for those individuals that use these or any other weapon in violent
crime, but let us not destroy cultural traditions enjoyed by many
because of the actions of a few. Make the criminals pay, not the citizens.
Mahalo for your time.
See SOH 00026 Testimony of Ron England Sr. Chief instr. Pedoy School of
Escrima.
And analogous to the California Supreme Court’s holding that finding a
pocket knife could be a dirk “would in effect make nearly every folding knife a
locking knife, thereby rendering the category of nonlocking folding knives
essentially a null set” and defeat legislative intent, adopting Defendants’ position
would make Heller’s finding that arms in common use are constitutionally protected
similarly hollow. People v. Castillolopez, 63 Cal. 4th 322, 332, 371 P.3d 216, 221,
202 Cal. Rptr. 3d 703, 710, 2016 Cal. LEXIS 3754, *17.
f. Lacy is Inapplicable to Plaintiffs’ Challenge
Lacy v. State, 903 N.E.2d 486, 2009 Ind. App. LEXIS 526 has no bearing on
Plaintiffs’ challenge. Lacy was an as-applied challenge to a criminal possession of a
switchblade outside the home under the Indiana Constitution. “…we pass over
Lacy's contention that Ind. Code § 35-47-5-2 is unconstitutional on its face and turn
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instead to whether its application in this case was unconstitutional”. Id. At 489.
Further, it relied on a faulty premise:
Lacy quotes Crowley Cutlery Co. v. U.S. (7th Cir. 1988) to refute the
Oregon Supreme Court’s position in Delgado that switchblade knives
are not intrinsically different from other knives. Crowley argued that
switchblade knives “are more dangerous than regular knives because
they are more readily concealable and hence more suitable for criminal
use.” It requires no expert testimony to demonstrate that this claim is
incorrect. A switchblade knife’s handle, when closed, must be at least
as long as the blade. In this respect, it is no different from any folding
knife, where the enclosure must be slightly longer than the blade. No
switchblade knife can be any more concealable than its non-automatic
counterpart.
D. Kopel, Clayton E. Cramer & Joseph Edward Olsen, Knives and the Second
Amendment, 47 U. Mich. J.L. Reform 167, 183 (Fall 2013).
Furthermore, butterfly knives are an entirely different type of knife with a
different history. And unlike Plaintiffs who challenge Hawaii’s in the home
possession ban on butterfly knives, Lacy was caught outside the home with a
switchblade:
The relevant facts follow. On September 11, 2004, Indiana

Conservation Officer James Schreck noticed three people driving all
terrain vehicles without registration decals Officer Schreck attempted
to stop the people, but they fled on the vehicles. Officer Schreck
patrolled the area and found an all terrain vehicle off the road in the
woods. Officer Schreck eventually located Lacy lying down in the
grass. Officer Schreck arrested Lacy and patted her down. Officer
Schreck discovered a pocketknife and a four-inch long switchblade on
Lacy.
Id. at 488.
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Thus, an in the home as-applied challenge to Indiana’s ban on switchblade
might very well be successful under the Indiana Constitution. Moreover, the Indiana
Constitution has a completely different standard of review than the Second
Amendment challenge brought by Plaintiffs. Under the Indiana Constitution,
“Courts defer to legislative decisions out when to exercise the police power and
typically require only that they be rational”. Id at 490. As briefed in Plaintiffs’
moving papers, Heller requires a higher level of scrutiny when evaluating Second
Amendment challenges. For all these reasons, Lacy has no relevance to the instant
matter.
g. Fyock Allows for the Application of Strict Scrutiny
Amicus Everytown for Gun Safety argues that Circuit precedent requires
intermediate scrutiny in this matter. Everytown for Gun Safety Amicus Brief at 8.
They rely on Fyock v. City of Sunnyvale which applied intermediate scrutiny in
evaluating a ban on magazines which hold over ten rounds:
Indeed, Measure C does not affect the ability of law-abiding citizens to

possess the "quintessential self-defense weapon"—the handgun. See
Heller, 554 U.S. at 629. Rather, Measure C restricts possession of only
a subset of magazines that are over a certain capacity. It does not restrict
the possession of magazines in general such that it would render any
lawfully possessed firearms inoperable, nor does it restrict the number
of magazines that an individual may possess. To the extent that a
lawfully possessed firearm could not function with a lower capacity
magazine, Measure C contains an exception that would allow
possession of a large-capacity magazine for use with that firearm.
Sunnyvale, Cal. Muni. Code § 9.44.050(c)(8). For these reasons, there
was no abuse of discretion in finding that the impact Measure C may
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460
have on the core Second Amendment right is not severe and that
intermediate scrutiny is warranted.
Fyock v. City of Sunnyvale, 779 F.3d 991, 999, 2015 U.S. App. LEXIS 3471, *19.
The Ninth Circuit, on abuse of discretion review, accepted the trial court’s
application of intermediate scrutiny because magazines are merely a tool to use in
handguns and are not an arm itself. This holding is not binding on trial courts.
“Fyock's conclusion about the severity of Sunnyvale's large-capacity magazine ban
was fact-bound. It did not announce as a matter of law that magazine capacity bans
of any kind never impose a severe burden on Second Amendment rights.” Duncan
v. Becerra, 366 F. Supp. 3d 1131, 1158, 2019 U.S. Dist. LEXIS 54597, *54-55. It
certainly is not binding on this Court when reviewing a ban on an actual protected
arm.
Heller defined “arms” as “‘weapons of offence, or armour of defence.’” 554
U.S. at 581 (quoting Samuel Johnson, 1 Dictionary of the English Language 106 (4th
ed.) (reprinted 1978)). “Thus, the most natural reading of ‘keep Arms’ in the Second
Amendment is to ‘have weapons.’” Id. at 582. Large-capacity magazines are a piece
of equipment used to make weapons more effective; they are not themselves
weapons and they are not an integral part of any weapon, since smaller magazines
15
461
can also be used in their stead. All otherwise legal varieties of handguns and long
guns remain available.15
Thus, the Ninth Circuit accepted the Fyock trial court’s application of
intermediate scrutiny because a ban on magazines over ten rounds does not affect
the ability of law-abiding citizens to possess protected arms. Unlike the magazine
ban at issue in Fyock, the challenged law in this matter bans possession of a protected
type of arm (butterfly knives). And knives, as shown above, are as quintessential to
self-defense as handguns. Thus, Circuit precedent supports applying a higher level
of scrutiny than the one used in Fyock. However, as shown below, even if this Court
does apply intermediate scrutiny, Hawaii’s butterfly knife ban is unconstitutional.
h. This Court Should Rely on State v. Delgado
The Oregon Supreme Court’s right to arms analysis under its state constitution
“mirrors the model employed by the United States Supreme Court in District of
Columbia v. Heller, supra, 554 U.S. 624-25”. See State v. DeCiccio, 315 Conn. 79,
117, 105 A.3d 165, 191, 2014 Conn. LEXIS 447, *63. And thus, it is authority this
Court should rely on. In State v. Delgado, the Oregon Supreme Court found
Oregon’s ban on switchblades to be unconstitutional under its state constitution.
15
In fact, the record in Fyock demonstrated that the average defensive shooting only
involves 2.1. rounds. See 4:13cv5807, Fyock et al., v. The City Of Sunnyvale et al.
Sunnyvale's Opposition to Plaintiff's Motion for Preliminary Injunction Docket
Number [36] at *14 fn. 10.
16
462
The Court first engaged in a historical analysis similar to that employed in
Heller finding that:
In early colonial America the sword and dagger were the most
commonly used edged weapons. During the American colonial era
every colonist had a knife. As long as a man was required to defend his
life, to obtain or produce his own food or to fashion articles from raw
materials, a knife was a constant necessity. Around 1650 one form of
dagger popular in the colonies was the "plug bayonet," so called
because it fit into the muzzle of a musket. It was used both as a dagger
or as a general utility knife. Other knives became popular during the
17th and 18th centuries. The American frontiersman used a large knife
to ward off danger from Indian attacks and to hunt and trap; along with
that he carried a smaller knife, the blade being three to four inches long,
in his rifle bag.
State v. Delgado, 298 Ore. 395, 401-403, 692 P.2d 610, 613-614, 1984 Ore. LEXIS
1934, *10-13, 47 A.L.R.4th 643. It then found that a switchblade is constitutionally
protected based on these historical antecedents:
We are unconvinced by the state's argument that the switch-blade is so

"substantially different from its historical antecedent" (the jackknife)
that it could not have been within the contemplation of the
constitutional drafters. They must have been aware that technological
changes were occurring in weaponry as in tools generally. The format
and efficiency of weaponry was proceeding apace. This was the period
of development of the Gatling gun, breach loading rifles, metallic
cartridges and repeating rifles. The addition of a spring to open the
blade of a jackknife is hardly a more astonishing innovation than those
just mentioned.
State v. Delgado, 298 Ore. 395, 403, 692 P.2d 610, 614, 1984 Ore. LEXIS 1934,
*13-14, 47 A.L.R.4th 643.
A butterfly knife, while Filipino in origin and thus different than colonial
analogues, still falls within this tradition and should be found protected “especially
17
463
here in Hawaii where the oriental culture and heritage play a very important role in
society.” See State v. Muliufi 643 P.2d 546, 548 (1982).
i. This Court Should Rely on State v. Herrmann and not State v. Murillo
For the same reasons that the Wisconsin Court distinguished Murrilo, so
should this Court.
Murillo is factually distinguishable because, unlike Herrmann, the

defendant in Murillo did not possess a switchblade in his own home for
his protection. Instead, he was convicted of possessing a switchblade
after using it in a fight at a Wal-Mart. Id. at
286. Accordingly, Murillo did not implicate the core Second
Amendment right to keep and bear arms in one's own home for self-
defense.
State v. Herrmann, 2015 WI App 97, P17, 366 Wis. 2d 312, 324, 873 N.W.2d 257,
263, 2015 Wisc. App. LEXIS 832, *13.
Here, Plaintiffs challenge Hawaii’s ban on butterfly knives inside the home.
Further, Plaintiffs have made efforts to conduct discovery and submit expert
testimony16 and other evidence unlike the litigant in Murillo.
We also observe that the defendant in Murillo did not raise his Second
Amendment challenge in the trial court and therefore deprived the State
of the opportunity to make an evidentiary showing that the challenged
statute withstood intermediate scrutiny. Id. at 286, 289 n.2. The Murillo
court nevertheless chose to address the defendant's argument,
reasoning, “Other cases have addressed the issue, and, rather than
remanding this case to the district court, we can address Defendant's
arguments based on case law.” Id. at 289 n.2. Thus, although the
Murillo court purported to apply intermediate scrutiny, it did not
actually hold the government to its burden of proof, choosing instead
16
The Defendants have not submitted any expert report or testimony in this matter
and their time to designate experts has lapsed.
18
464
to rely on unsupported statements from pre-Heller case law about the

dangerousness of switchblades and their frequent use by criminals. See
id. at 288-89. Unlike the Murillo court, we do not find these
unsupported statements persuasive.
State v. Herrmann, 2015 WI App 97, P19, 366 Wis. 2d 312, 326, 873 N.W.2d 257,
263, 2015 Wisc. App. LEXIS 832, *14-15. For the reasons argued in Plaintiffs’
moving papers and above, this Court should disregard Murillo as inapplicable to
Plaintiffs’ challenge.
j. HRS 134-53 Cannot Survive Intermediate Scrutiny
Even assuming intermediate scrutiny applies, the State’s ban fails. The State
opines that its interest in banning butterfly knives is to promote public safety. Even
under intermediate scrutiny, a challenged restriction cannot burden substantially
more constitutionally protected conduct than necessary to achieve the State’s
interest. McCullen v. Coakley, 134 S. Ct. 2518, 2540 (2014). And under intermediate
scrutiny the State is not allowed to rely on “‘shoddy data or reasoning.’ Defendants
must show ‘reasonable inferences based on substantial evidence’ that the statutes are
substantially related to the governmental interest.’” New York State Rifle & Pistol
Ass'n, Inc. v. Cuomo, 804 F.3d 242, 264 (2d Cir. 2015), cert. denied sub nom., Shew
v. Malloy, 136 S. Ct. 2486, 195 L. Ed. 2d 822 (2016) (citations omitted) (emphasis
in original) (striking down New York State's 7 round magazine limit).
Here, the State does not present any evidence that its ban on butterfly knives
promotes public safety whatsoever. Even assuming a ban on carrying them outside
19
465
the home is justified due to their concealability, it does not follow that it promotes
public safety to ban them in the home. Nor has it shown that its ban is “narrowly
tailored to further that substantial government interest.” Duncan v. Becerra, 366 F.
Supp. 3d 1131, 1170, 2019 U.S. Dist. LEXIS 54597, *82. “As the Supreme Court
succinctly noted in a commercial speech case, narrow tailoring requires ‘a fit
between the legislature's ends and the means chosen to accomplish those ends.’”
Minority Television Project, Inc. v. F.C.C., 736 F.3d 1192, 1204 (9th Cir. 2013)
(quoting Bd. of Tr. of the State Univ. of New York v. Fox, 492 U.S. 469, 480, 109 S.
Ct. 3028, 106 L. Ed. 2d 388 (1989)).” See Duncan v. Becerra, 366 F. Supp. 3d 1131,
1170, 2019 U.S. Dist. LEXIS 54597, *82.
Rather, the State has misapplied that law by arguing it can demonstrate
tailoring by showing that it only bans a certain set of knives. This contradicts
Heller’s reasoning. “There, the Court unequivocally rebuffed the argument ‘that it
is permissible to ban the possession of handguns so long as the possession of other
firearms (i.e., long guns) is allowed.’” 554 U.S. at 629. Worman v. Healey, 922 F.3d
26, 36, 2019 U.S. App. LEXIS 12588, *18. Here, the State bans butterfly knives in
the home when Heller requires it to allow handgun possession. It does so because
it claims that butterfly knives are easier to conceal. Even if that could justify a ban
outside the home, what possible rationale could that be to ban constitutionally
protected arms inside the home based on their concealability? And accepting the
20
466
State’s position, it could ban every single pocketknife and still survive constitutional
muster. That is a nonsensical position when Heller precludes a prohibition on
handguns. Especially when a host of other knives are legal, deadlier and commonly
possessed in most people’s kitchens. E.g. a butcher knife attack has a 13.3%
mortality rate compared to a switchblade (which the State appears to argue is roughly
as deadly as a butterfly knife) attack which has 5.9 % mortality rate. See Harwell
Wilson & Roger Sherman, Civilian Penetrating Wounds to the Abdomen, 153
ANNALS OF SURGERY 639, 640 (1961) at *4.
As other equally concealable knives such as pocketknives and deadlier knives
such as butcher knives are legal, the butterfly knife ban is too underinclusive to
survive intermediate scrutiny. In constitutional law, underinclusivity follows
necessarily from the evaluation of a fit between means and ends. see Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001); 556; Fla. Bar v. Went For It, Inc.,
515 U.S. 618, 632 (1995); Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,
480 (1989)).
The assessment of fit looks to the relation between the class who comes within
the scope of the regulation’s stated objective, and the class actually affected by the
regulation. See, e.g., Joseph Tussman & Jacobus tenBroek, The Equal Protection of
the Laws, 37 CALIF. Under this standard, what matters is not whether a regulation
is specifically overinclusive, but rather by how much it is either over or
21
467
underinclusive. See, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S.
410, 428 (1993) (holding a city ordinance intended to advance safety and aesthetic
interests unconstitutional because it unjustifiably affected only a small fraction of
operating newsracks, thus constituting an unreasonable fit between ends and means).
See also Parents for Privacy v. Barr, 2020 U.S. App. LEXIS 4503, *53
(“Underinclusiveness is determined with respect to the burdens on religious and non-
religious conduct and the interests sought to be advanced by the policy”).
The Court first developed this test in the equal-protection context, and
subsequently imported it into First Amendment doctrine in the early 1970s. See, e.g.,
Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972); Kenneth L. Karst, Equality
as a Central Principle in the First Amendment, 43 U. CHI. L. REV. 20 (1975). The
Ninth Circuit uses First Amendment principles to evaluate Second Amendment
claims. “In analyzing the second prong of the second step, the extent to which a
challenged prohibition burdens the Second Amendment right, we are likewise
guided by First Amendment principles.” Jackson v. City & County of San Francisco,
746 F.3d 953, 961, 2014 U.S. App. LEXIS 5498, *13, 2014 WL 1193434. Thus,
under intermediate scrutiny, Plaintiffs’ challenge calls for an assessment of “the fit
between the challenged regulation and the asserted objective,” Police Dep’t of
Chicago v. Mosley, 408 U.S. 92, 98 (1972).
22
468
Here, the State’s purported interest is to ban concealable knives that can be
quickly opened to promote public safety. However, common folding knives are just
as concealable and open faster than butterfly knives.17 Post-Heller, the State cannot
ban all self-defense knives as it implicitly concedes in its Motion for Summary
Judgment. “HRS § 134-53 bans only butterfly knives... [i]t is not a complete ban on
all knives...[t]herefore the regulation is tailored to the state's objective.” See
Defendants’ MSJ at 13.
Singling out a knife while other equally or more dangerous knives remain
legal is not sufficiently tailored to the State’s purported interest. Additionally, it is
not a “reasonable fit because, among other things, it prohibits law-abiding…weapon
permit holders and law-abiding U.S Armed Forces veterans from acquiring”
butterfly knives. See Duncan v. Becerra, 366 F. Supp. 3d 1131, 1185, 2019 U.S.
Dist. LEXIS 54597, *122. The State has failed to demonstrate its ban on butterfly
knives actually promotes public safety, and even if it had, it has not shown that the
ban is properly tailored. For the above reasons, Hawaii’s ban on butterfly knives
fails intermediate scrutiny.
See Burton Richardson’s Declaration and video provided in Plaintiffs’ Motion for
17
Summary Judgment.
23
469
III. Conclusion
As there are no genuine issues of material fact, this Court should deny the
Defendants’ Motion for Summary Judgement and grant Plaintiffs’ Motion for
Summary Judgment.
Respectfully submitted, this the 30th day of March, 2020.
/s/ Alan Beck

Alan Alexander Beck
/s/ Stephen D. Stamboulieh

Stephen D. Stamboulieh
Stamboulieh Law, PLLC
*Admitted Pro Hac Vice
24

Teter/Grell Opposition To Defendants' Motion For Summary Judgement (Hawaii Butterfly Knife Case)

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Case 1:19-cv-00183-ACK-WRP Document 51-1 Filed 03/30/20 Page 1 of 28 PageID #:

Alan Alexander Beck

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

ANDREW TETER and JAMES ) Civil No. 1:19-cv-00183 ACK-WRP

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’

a. Knives Are the Most Common Arm……………………………………..1

b. Defendants’ Evidence Is Inapplicable…………………………...……….2

c. The Laws of the Kingdom of Hawaii Are Inapplicable………………….4

d. Butterfly Knives Are Not Dangerous and Unusual ………...……………7

e. Butterfly Knives Are Not Like Switchblades ……………………..…….8

f. Lacy is Inapplicable to Plaintiffs’ Challenge ……………….………….12

g. Fyock Allows for the Application of Strict Scrutiny……..…………….14

h. This Court Should Rely on State v. Delgado………………………...…16

i. This Court Should Rely on State v. Herrmann and not State v.

j. HRS 134-53 Cannot Survive Intermediate Scrutiny……………………19

State v. Delgado, 692 P.2d 610 (Or. 1984) ...................................................... passim

Defendants’ Motion for Summary Judgment should be denied. Based on the

attempt to analogize to them is inapplicable. As Defendants’ own exhibits

protection. As a preliminary matter, Defendants make no argument that their ban

below, Hawaii’s complete ban is unconstitutional.

a. Knives Are the Most Common Arm

b. Defendants’ Evidence Is Inapplicable

As a preliminary matter, Plaintiffs disagree with Defendants’ argument that

certain types of knives can be outside of constitutional protection assuming knives

whether the particular handgun Dick Heller possessed was constitutionally

frontiersmen] to seize a hunting rifle or knife in self-defense... must sometimes have

moving papers, a bevy of Courts have found otherwise.4

to carry [a butterfly knife] without identification or a proper permit in the streets of

argument because in Hawaii, the butterfly knife is completely banned, and no

possession in the home.

Defendants fail to demonstrate with any competent summary judgment evidence

unsupported by current caselaw. As such, summary judgment should be granted for

the Plaintiffs and Defendants’ motion denied.

c. The Laws of the Kingdom of Hawaii Are Inapplicable

Defendants’ reliance on laws from the Kingdom of Hawaii completely lack

outside the home so it has no applicability to Plaintiffs’ challenge to possession in

relevance in analyzing our system of constitutional law.

Even after transitioning to a constitutional monarchy, the Kingdom of Hawaii

of Hawaii Constitution of 1840, “Governors.” Consistent with an exclusive claim to

single kingdom [under] Kamehameha I....”.7 Thereafter, native Hawaiians continued

installed government (and select Caucasian inhabitants) being permitted to possess

Hawaiian Islands through the “Bayonet Constitution” of 1887.9

This is hardly a noble pedigree to apply when determining the right of a

was granted statehood. In short, Hawaii’s history on weapons regulation is utterly

irrelevant here. Rather than being embraced as “longstanding”11 and/or

“presumptively lawful,” Hawaii’s antiquated weapons regulatory scheme should be

its history of disarmament.

d. Butterfly Knives Are Not Dangerous and Unusual

C. Wilson, Visible Violence, 12 NAT’L J. 886, 887 (2003). Short of bombs,

Deposition of Robin Nagamine, Docket No. 34-6, Tr. at 27:19-21. Defendants’

dangerous as to be outside of constitutional protection. See Fyock v. City of

and unusual argument must be rejected.

e. Butterfly Knives Are Not Like Switchblades

Assuming without conceding the State’s propositions about switchblades are

correct, these propositions cannot be analogized to butterfly knives.12 First,

arguments are spurious. A butterfly knife is no more concealable than a standard

YouTube videos.13 Defendants’ MSJ at 5.

Notwithstanding not being provided this information beforehand, these videos

opens faster than a butterfly knife.

cannot be when Heller found handguns to be protected. Handguns are both

LEXIS 18121, *29.